Statewide Grievance Committee v. Burton

• Decision Date: 19 April 2005
• Docket Number: No. 25284.,25284.
• Citation: 871 A.2d 380,88 Conn.App. 523
• Court: Connecticut Court of Appeals
• Parties: STATEWIDE GRIEVANCE COMMITTEE v. Nancy BURTON.

871 A.2d 380

88 Conn.App. 523

STATEWIDE GRIEVANCE COMMITTEE v. Nancy BURTON.

No. 25284.

Appellate Court of Connecticut.

Argued January 7, 2005.

Decided April 19, 2005.

Michael P. Bowler, acting bar counsel, for the appellant (plaintiff).

Nancy Burton, pro se, the appellee (defendant), filed a brief.

FOTI, DRANGINIS and BISHOP, Js.

DRANGINIS, J.

The issue in this appeal is whether a trial court has subject matter jurisdiction over a presentment complaint (presentment), filed pursuant to Practice Book § 2-47,¹ alleging misconduct by an attorney who was disbarred subsequent to the events alleged in the presentment. We conclude that the court has subject matter jurisdiction because the issue is justiciable.

The plaintiff, the statewide grievance committee, appeals from the judgment of the court, Mintz, J., dismissing the presentment for lack of subject matter jurisdiction. The court concluded that it did not have jurisdiction because the defendant, Nancy Burton, already had been disbarred. On appeal, the plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction. We agree.²

The incident that forms the basis of the presentment occurred in 1995 (1995 incident) and has spawned, directly or indirectly, prior appeals to this court. See Burton v. Statewide Grievance Committee, 80 Conn.App. 536, 835 A.2d 1054 (2003), cert. denied, 268 Conn. 907, 845 A.2d 410 (2004); Burton v. Statewide Grievance Committee, 60 Conn.App. 698, 760 A.2d 1027 (2000). In the earlier appeal, directly related to the 1995 incident, this court reversed the judgment of the trial court, McWeeny, J., affirming the decision of the plaintiff to reprimand the defendant for violation of rules 8.2(a) and 8.4(4) of the Rules of Professional Conduct. The case was remanded to the trial court with orders to reverse the judgment dismissing the defendant's appeal and to remand the matter to the plaintiff for further proceedings. Burton v. Statewide Grievance Committee, supra, 60 Conn.App. at 707, 760 A.2d 1027.

Subsequently, in November, 2001, the court, Mottolese, J., disbarred the defendant from the practice of law in this state for misconduct that occurred subsequent to the 1995 incident. See Sullivan v. Monroe, Superior Court, judicial district of Fairfield, Docket No. 370545, 2001 WL 1429246 (November 2, 2001).³ The defendant thereafter filed a writ of error to contest her disbarment. Our Supreme Court dismissed the writ of error, thereby upholding the defendant's disbarment. Burton v. Mot tolese, 267 Conn. 1, 59, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004).

The plaintiff filed the presentment at issue in January, 2004. The presentment is the means by which to bring the defendant's alleged misconduct with respect to the 1995 incident before the Superior Court for a hearing. See Practice Book § 2-47. The presentment alleges, in part,⁴ that in December, 1995, the defendant, who at the time was a member of the Connecticut bar, wrote a letter to then Chief Justice Ellen A. Peters, in which she stated that the conduct of three judges of the Superior Court displayed the "stark appearance of judicial corruption." The presentment further alleges that the defendant's conduct with respect to her remarks about the three judges violated rules 8.2(a)⁵ and 8.4(4)⁶ of the Rules of Professional Conduct. At a preliminary hearing on the presentment, Judge Mintz, sua sponte, raised the issue of the court's subject matter jurisdiction in light of the defendant's disbarment.⁷ The court ordered the parties to brief the issue and to return to court for oral argument thereafter. After hearing the parties' arguments on March 16, 2004, Judge Mintz concluded that the court lacked subject matter jurisdiction because the defendant had been disbarred. The court found that there is no rule authorizing the Superior Court's continued jurisdiction over a disbarred attorney, concluded that the matter was not justiciable and dismissed the presentment. The plaintiff appealed.

"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn.App. 199, 203, 821 A.2d 269 (2003). "Because such a determination involves a question of law, our review is plenary." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Stewart-Brownstein v. Casey, 53 Conn.App. 84, 88, 728 A.2d 1130 (1999).

There is a distinction between a court's jurisdiction and its statutory authority to act. See 1 Restatement (Second) Judgments § 11 (1982). "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.... Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999). "Fixing the qualifications for, as well as admitting persons to, the practice of law in this state has ever been an exercise of judicial power." (Internal quotation marks omitted.) Scott v. State Bar Examining Committee, 220 Conn. 812, 817, 601 A.2d 1021 (1992).

"The Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar.... The judiciary has the power to admit attorneys to practice and to disbar them ... to fix the qualifications of those to be admitted ... and to define what constitutes the practice of law.... In the exercise of its disciplinary power, the Superior Court has adopted the Code of Professional Responsibility." (Citations omitted; internal quotation marks omitted.) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 553-54, 663 A.2d 317 (1995).

Judge Mintz concluded that the court lacked subject matter jurisdiction because the issue was not justiciable, as the defendant was no longer a member of the bar. In reaching this conclusion, he relied on the definition of justiciability set forth in Mayer v. Biafore, Florek & O'Neill, 245 Conn. 88, 713 A.2d 1267 (1998). "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Id., at 91, 713 A.2d 1267. Judge Mintz concluded that because the defendant had been disbarred prior to the filing of the presentment, the third and fourth prongs of the justiciability rule were wanting. We conclude, however, that, although the defendant has been disbarred for conduct unrelated to the 1995 incident alleged in the presentment, the matter is capable of being adjudicated and the determination of the controversy will result in practical relief to the plaintiff.

Although the dissent contends that Judge Mintz properly dismissed the presentment because the issue is moot as there is no legal relief that can be granted, we note that our case law uses the terms legal and practical relief. "Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.... Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings.... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.... An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn.App. 43, 46, 800 A.2d 641 (2002). "[C]ourts do not decide moot questions `disconnected from the granting of actual relief or from the determination of which no practical relief can follow.' ... One oft-cited case put it this way in finding mootness: `So, as no practical benefit could follow from the determination of the questions... it is not incumbent upon us to decide them.'" (Citation omitted.) State v. Klinger, 50 Conn.App. 216, 222, 718 A.2d 446 (1998). We are of the mind that there is actual relief and practical benefit to be afforded both the plaintiff and the defendant by a court's determining whether the defendant's alleged conduct related to the 1995 incident was, in fact, misconduct.

General Statutes § 51-90e provides in relevant part: "(a) Any person may file a written complaint alleging attorney misconduct...." (Emphasis added.) Practice Book § 2-47 provides in relevant part: "(a) Presentment of attorneys for misconduct ... shall be made by written complaint of the statewide grievance committee...." (Emphasis added.) When construing a statute, we ascertain its meaning from the text of the statute itself and its relationship to other statutes. General Statutes § 1-2z. The presentment here concerns an incident that occurred in 1995, alleging misconduct that occurred before the defendant was disbarred. Section 51-90e and Practice Book § 2-47 concern the misconduct of attorneys. "[E]ach disciplinary action must be decided on its own particular facts in order to determine the appropriate discipline." In re Application of Kraemer, 411 N.W.2d 71, 74 (N.D.1987); see also People v. Jamrozek, 921 P.2d 725 (Colo.1996) (affirming recommendation for disbarment but...